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Weekly News Wrap: Monday, May 25, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

http://opiniojuris.org/2015/05/25/weekly-news-wrap-monday-may-25-2015/
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Weekend Roundup: May 10-16, 2015

by Jessica Dorsey

This week on Opinio Juris, Duncan posted his thoughts on the fog of technology and international law with respect to drone strikes and Kevin defended (!) Jeb Bush for his somewhat botched answer to Fox News’ Megyn Kelly about the Iraq war.

We had three great guest posts. The first, garnering a large amount of discussion, was from Eugene Kontorovich on Iran’s relief ship and the blockade of Yemen. Our second came from Emma Irving, highlighting the news this week that Mathieu Ngudjolo Chiu, acquitted by the ICC, was sent packing from the Netherlands back to the DRC without asylum, despite the risk he claims he faces in the DRC. Finally, Rishi Gulati weighed in on the recent case of Anders Kompass, the senior UN official who leaked an internal UN report on sexual abuse by UN staff in the Central African Republic to the French authorities, and gave some insights into the UN’s internal justice system.

We’ve announced our third annual Emerging Voices symposium–abstracts are due by 31 May 2015 and I rounded up the news here and the events of the week here.

Thanks for following us and have a great weekend!

http://opiniojuris.org/2015/05/16/weekend-roundup-may-10-16-2015/
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Weekly News Wrap: Monday, May 11, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • The United States on Friday described as horrifying accusations of sexual abuse of children by French and African troops in Central African Republic, and called for a separate inquiry into how the United Nations handled the allegations.
  • The European Union and the United States are close to completing negotiations on a deal protecting personal data shared for law enforcement purposes such as terrorism investigations, three people familiar with the matter said.
  • Omar Khadr, a Canadian who was once the youngest prisoner held on terror charges at Guantanamo Bay, was released on bail from an Alberta prison Thursday while he appeals a murder conviction by a U.S. military tribunal.

Oceania

  • Australian police said on Saturday they had thwarted an imminent terror attack after discovering explosives at a Melbourne home and arresting a 17-year-old boy, in the latest example of the threat posed by radicalized teenagers in the country.

UN/World

http://opiniojuris.org/2015/05/11/weekly-news-wrap-monday-may-11-2015/
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Weekend Roundup: April 25-May 9, 2015

by Jessica Dorsey

The blog saw quite some discussion over the last two weeks.

As Julian was avoiding grading exams, he posted about Helmerich & Payne v. Venezuela, where the U.S. Court of Appeals for the D.C. Circuit held that “domestic takings” can violate international law. He also covered the Sea Shepherd petition for certiorari with the U.S. Supreme Court and how Russia, in lecturing the EU in international law, threatened to veto the EU’s attempt for authorization of force against traffickers in Libya from the Security Council. Additionally, Julian posed the question of whether investor-State arbitration weakens the rule of law in reference to the ongoing discussion about the TPP and TTIP and urged us to listen to President Obama rather than candidate Obama when it comes to unilateral presidential war powers, in light of a panel on which he was recently a speaker.

Kevin pointed out Darryl Robinson’s must-read new article on the ICC–“Inescapable Dyads: Why the ICC Cannot Win,” which Cambridge University Press has made available to our readers for free until the end of October 2015. He also continued the discussion on Harold Koh’s appointment at NYU by highlighting Human Rights First’s Elisa Massimino’s position (with which he agrees) defending Koh and highlighted Breaking the Silence’s recent report on Operation Protective Edge.

We had three guest posts. The first, from Sondre Torp Helmersen and Niccolò Ridi, discussed whether there was a case for destroying the smugglers’ boats in the crisis in the Mediterranean and the second, from Elisa Freiburg, analyzed Stephen Preston’s recent speech on “The Legal Framework for the United States’ Use of Military Force since 9/11″ at the ASIL Annual Meeting, calling it old wine in new bottles. Finally, Stuart Ford made the case that the complexity of international trials is necessary.

To round it all off, I wrapped up the news here and here, and listed a few events and announcements here. Have a great weekend!

http://opiniojuris.org/2015/05/10/weekend-roundup-april-25-may-9-2015/
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Weekly News Wrap: Monday, May 4, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

  • Key infrastructure in war-torn Yemen, including water supplies, health services and telecommunications, are on the verge of breaking down due to a major fuel shortage, a United Nations humanitarian official has warned.
http://opiniojuris.org/2015/05/04/weekly-news-wrap-monday-may-4-2015/
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Weekly News Wrap: Tuesday, April 28, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

  • Israel fired on seven United Nations schools during the 2014 Gaza war, killing 44 Palestinians who had sought shelter at some sites, while Palestinian militants hid weapons and launched attacks from several empty U.N. schools, a U.N. inquiry found.
  • The humanitarian situation in Yemen has become catastrophic, relief officials said on Monday, as Saudi-led aircraft pounded Iran-allied Houthi militiamen and rebel army units for a second day, dashing hopes for a pause in fighting to let aid in.
  • Israel invited bids on Monday to construct 77 new homes in two settlements on occupied land in East Jerusalem, drawing a swift Palestinian condemnation.

Asia

Europe

Americas

Oceania

  • Australian ties with Indonesia have become strained after nine drug traffickers met their families for what could be the final time at an Indonesian maximum security prison on Tuesday, as Jakarta rejected international pleas for clemency and ordered their executions to proceed, possibly within hours.

UN/World

http://opiniojuris.org/2015/04/28/weekly-news-wrap-tuesday-april-28-2015/
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Weekend Roundup: April 11-25, 2015

by Jessica Dorsey

The last two weeks of posts at Opinio Juris have seen several items from Julian, including on his favorite treaty reservation ever in the Hague Child Support Treaty and more on the HCST and the role of US states here. He also asked the burning question of whether the new “Bipartisan Trade Priorities and Accountability Act”  violate the U.S. Constitution’s bicameralism and presentment requirements as stated by the U.S. Supreme Court in INS v. Chadha?

Kristen highlighted the new report entitled “Nuclear Weapons: the State of Play 2015” ahead of the upcoming NPT review conference, while Kevin weighed with his thoughts on the current petition at NYU to keep Harold Koh from teaching human rights (here and here).

We featured two guest posts, the first from William S. Dodge discussing whether the Alien Tort Statute is headed back to the US Supreme Court and the second from Natia Kalandarishvili-Mueller on Russia’s treaties with Abkhazia and South Ossetia, Georgia.

I wrapped up the news (here and here), offered the Events and Announcements here, and An did so here.

Thanks for following us on Opinio Juris and have a fantastic weekend!

http://opiniojuris.org/2015/04/25/weekend-roundup-april-11-24-2015/
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Weekly News Wrap: Monday, April 20, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • Poland has summoned the United States’ ambassador in Warsaw over an article written by a top U.S. intelligence official on Poland’s alleged responsibility for the Holocaust during World War Two, a foreign ministry spokesman said on Sunday.
  • After months of positive progress, the two and a half-year-old peace process in Colombia between the government and rebel group the Revolutionary Armed Forces of Colombia (FARC) is in crisis once again.

Oceania

UN/World

http://opiniojuris.org/2015/04/20/weekly-news-wrap-monday-april-20-2015/
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Weekly News Wrap: Monday, April 13, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • In the first meeting of its kind in nearly 60 years, U.S. President Barack Obama and Cuban leader Raul Castro sat down together for over an hour on Saturday at a regional summit in Panama, moving a step closer to restoring diplomatic ties.
  • As the United States and Iran come closer to a historic nuclear deal, many U.S. states are likely to stick with their own sanctions on Iran that could complicate any warming of relations between the long-time foes.
  • U.S.-led forces targeted Islamic State militants in Syria with three air strikes from Saturday to Sunday morning, and also conducted 10 air strikes in Iraq, the U.S. military said.
  • A U.S. federal judge on Friday denied a last-minute request by four U.S. former Blackwater guards convicted in the massacre of 14 unarmed Iraqis in 2007 to have their sentencing postponed, and said it will go ahead as planned on Monday.

Oceania

UN/World

http://opiniojuris.org/2015/04/13/weekly-news-wrap-monday-april-13-2015/
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Weekend Roundup: April 4-10, 2015

by Jessica Dorsey

This week on Opinio Juris, we hosted a Book Symposium on Interpretation in International Law. The Symposium was introduced by Daniel Peat and Matthew Windsor who offered the framework and context of the book in describing their introductory chapter (available here), explaining that the idea of interpretation in their work centers around the metaphor of a game, with each of the authors contributing their thoughts on elements of that game.

In the next post, our own Duncan examined the object of the game of interpretation in terms of its existential function. Then, on Tuesday, Michael Waibel analyzed the players of the game by discussing the nature of interpretive and epistemic communities in international law. Wednesday, Julian Arato confronted the paradox that, despite the unity and universality of the VCLT rules, there is a practice of affording some treaties differential treatment in the process of interpretation. Thursday, Fuad Zarbiyev characterized the interpretive method of textualism in strategic terms, revealing the historical contingencies that led to it being regarded as sacrosanct in international law. And finally on Friday, Philip Allott’s contribution (emblematic of the aims of the book) reflected on ways to promote critical and open-minded reflection on interpretive practices and processes in international law.

We had two guest posts, one from John Louth who discussed how many international law books are published each year, and one from Gabor Rona, who addressed the recent holding Maldonado v. Holder as it pertains to the US’ obligations under the Convention Against Torture.

Kevin offered his thoughts on the advantage for Palestine of a slow preliminary examination with respect to Palestinian statehood and the recent petition to bar Harold Koh from teaching human rights at NYU and Roger highlighted a debate amongst scholars on the investment arbitration chapter in the TPP and TTIP.

I posted the news and events and announcements.

Thanks very much to the contributing authors of Interpretation in International Law as well as our guest contributors and to you for following us on Opinio Juris. Have a great weekend!

http://opiniojuris.org/2015/04/11/weekend-roundup-april-4-10-2015/
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Book Symposium: Interpretation — An Exact Art

by Philip Allott

[Philip Allott is Emeritus Professor of International Public Law at the University of Cambridge.]

Interpretation of any text – religious, political, historical, scientific, literary, artistic, legal – raises profound philosophical problems. Interpretation of a legal text is in a class of its own, because it can have direct and substantial social effects, determining people’s lives. The philosophy of legal interpretation is the philosophy of a fundamental aspect of social existence.

The philosophical problems of interpretation stem from the fact that interpretation is a re-presentation of a presentation of reality contained in the text, a reality which is already an interpretation by the mind of some aspect of human experience, and the interpretative re-re-presentation then itself becomes part of that reality. The circular problem of the presentation of reality in language and symbols that modify reality has traditionally been seen as a problem of epistemology – How do we know anything? What is that we know when we think that we know something?

When a text is in a moral context (what does this text say that I or we should do?), it may have a personal effect beyond the social effect. Interpretation may generate a sense of obligation.   When a text is in a legal context, it may have more dramatic effects, personal and social. It may give rise to legal relations – rights, duties, powers, freedoms, etc.   And legal relations switch on specific and powerful social mechanisms in the making and the application and the enforcement of law.

It is a familiar fact that translation into another language can never produce a perfect re-presentation of a text in that other language. But such an ideal may dominate the mind of the translator, involving an underlying respect for the intention of the author of the text. In the case of interpretation, the originating premise is that the interpretation will be something different from the text interpreted.

A speculative or imagined intention of the author of the text may be a relevant element in interpretation, but the interpretation may properly take into account an unlimited number of other considerations. The interpretative context is, in principle, unlimited. It is for this reason that an attempt to lay down general legal rules of interpretation, as in the Vienna Convention on the Law of Treaties, is futile, not least because those rules must themselves be interpreted.

Thus all forms of interpretation involve a succession of acts of creation, supplementing the creative act that produced the original text. The original text becomes the nucleus of an ever-growing living-body of interpretations, each interpretation digesting the work of its predecessors. The text comes to be what it has been made to become through interpretation.

In all forms of interpretation, there may be a sense of proper limits to freedom of interpretation, an implied and unspoken deontology of interpretation. A religious text, centuries later, may have only slender connections with its original form. A Greek tragedy is its bare text plus centuries of thought about it. A work of art is overlaid with veneers, layer after layer, of thought about the work. The only controlling obligations in such cases seem to be a duty to preserve a continuing coherence of interpretation, a sense of respect for the author, a sense of changing social and cultural contexts to which interpretation should respond.

In the case of legal interpretation, the controlling deontology is an integral part of the justification of law itself as a social phenomenon. Law is a violation of human freedom inherited from the social past, taking effect in the social present, determining the social future. Law needs a lot of justifying. Lawyers are aware of this, especially judges and leading practising lawyers, and legal academic writers. Arbitrary interpretation would be a violation of the social responsibility of the lawyer, an abuse of social power. Lawyers know that they must justify their legal interpretations in the same ways that law in general and public authority in general are justified – through respect for a whole array of contextual social and moral standards and understandings, and an ultimate duty to find and to serve the common interest.

Interpretation of International Law is in a very different situation. There are no established contextual social and moral norms and understandings of the kind that dominate advanced national societies.   The overriding international ethic is the use of crude power and diplomatic power to serve nationally determined interests, with only a weak sense of a common interest.   The systems of law-making and law-application and law-enforcement are rudimentary and haphazard.   An international legal text is a happy-hunting-ground for the extreme ingenuity and duplicity that enlightened self-interest, and the subtle minds of lawyers, can generate – and an inexhaustible source of wealth for some.   Practical examples of this abound in the torrent of legal texts created and interpreted and applied in the vast expansion of the scope of International Law since 1945.

The future of international legal interpretation will be better if the future of International Society is better – and if International Lawyers acquire a more sophisticated understanding of the nature and the problems and the responsibilities of all forms of interpretation, and especially of legal interpretation. Interpretation in International Law is an art and a game and a field of battle. It is an ultimate art of the possible, and the possible includes a better kind of law for a better kind of international society.

http://opiniojuris.org/2015/04/10/book-symposium-interpretation-an-exact-art/

Book Symposium: Textualism in Treaty Interpretation–A Genealogy

by Fuad Zarbiyev

[Fuad Zarbiyev is an Associate in the International Arbitration Group of Curtis, Mallet-Prevost, Colt & Mosle LLP.]

The interpretation discourse in modern international law is dominated by a textualist paradigm. This claim may seem empirically wrong if it is taken to mean that nothing other than eo nomine textual arguments features in the international legal discourse. After all, the interpretive regime set forth in the Vienna Convention on the Law of Treaties seems to put the terms, the context, and the object and purpose of the treaty on an equal footing. But this does not disprove the dominant status of the textualist paradigm. As a matter of the Vienna Convention regime, context is for instance nothing other than a slightly enlarged text. Likewise, object and purpose is not something independent of the text, but a parameter that can hardly claim relevance in the interpretive discourse without a textual anchoring.

Why has textualism come to assume such prominence in a legal system in which consensualism has traditionally been and is still said to be at the heart of legal commitments? Is it not paradoxical that intentionalism, which seems more deferential to state consent, is systematically discredited as an interpretive philosophy in international law?

No persuasive answer can be found to such questions in the international case law or the scholarly works uncritically reproducing it both of which seem to suggest that the interpretive regime set forth in the Vienna Convention is of a temporally boundless validity. Despite the fact that the treaty interpretation rules embodied in the Vienna Convention have been applied to treaties dating to the nineteenth century, the notion that the interpretive regime embodied in the Vienna Convention can claim a sort of trans-historical validity does not stand up to an historically informed scrutiny. Consider the following two interpretive statements separated from each other by a time interval of 87 years. The first statement issued by an arbitral tribunal in 1897 reads as follows:

[W]e are to interpret and give effect to the treaty of April 15, 1858, in the way in which it was mutually understood at the time by its makers … It is the meaning of the men who framed the treaty which we are to seek, rather than some possible meaning which can be forced upon isolated words or sentences.

The second statement, issued by the Iran-US Special Claims Tribunal in 1984, holds that:

[T]he Vienna Convention does not require any demonstration of a ‘converging will’ or of a conscious acceptance by each Party of all implications of the terms to which it has agreed. It is the ‘terms of the treaty in their context and in the light of its object and purpose’ with which the Tribunal is to be concerned not the subjective understanding or intent of either of the Parties.

Two interpretive philosophies farther apart from each other are hardly conceivable. A series of historically contingent factors can plausibly explain the gap between the epistémés underpinning these philosophies. The first among such factors is the phenomenon of permanent international tribunals. The rise of permanent tribunals seems to have gone hand by hand with the increasing marginalization of the intention of the parties in treaty interpretation. Traditionally considered as common body of the parties, arbitral tribunals tended to be careful in tracing back their decisions to the intention of the parties. In contrast, due to their independence from the parties before them, permanent tribunals did not feel the same discursive constraints and were able to place priority on text. The primary sign of this tendency is of course the decrease of the importance attached to travaux préparatoires in treaty interpretation.

Another factor worth considering is the ideological division of the international society in the 1950s-1960s when the Vienna Convention on the Law of Treaties was being drafted and finally adopted. Despite their strong political preference for the voluntarist conception of international law, the countries from the communist bloc vehemently rejected any attempt to undermine the priority status of textualism during the Vienna Conference on the law of treaties. Their position must be viewed against the ideological stakes at issue: the notion that communist countries could share a common intention with “bourgeois” states was hardly acceptable on ideological grounds as explained by the leading Soviet international lawyer, Grigory Tunkin.

Decolonization and the rise of newly independent countries on the international plane seem to be another relevant factor. While newly independent countries had a clear preference for law-making by treaties as opposed to customs over which they had no control, intentionalism could not have been an attractive interpretive approach for them. For one thing, intentionalism carried with it a serious potential for manipulation of the scope of their treaty commitments. For another, intentionalism presented the risk that the common intention of the original parties to a significant number of multilateral treaties to which newly independent countries became parties could be controlling. Neither of these prospects was acceptable to newly independent countries in view of their acute sovereignty-sensitivity.

Such contingent institutional and political factors should be seen together with the clear preference textualism has traditionally enjoyed in the intellectual history of international law, which explains that the historical contingency of textualism is seldom questioned by international law scholars. Due to the decentralized nature of the international society, every State enjoys the power to interpret its own rights and obligations. If unconstrained, this power of auto-interpretation can carry with it an enormous dispute-generating potential the danger of which is self-evident in international law where no state can be compelled to submit its dispute with another to a binding dispute settlement mechanism. The pro-textualist preference of international lawyers reflects their constant search for solid foundations that cannot be manipulated by states pursuing their own interests.

A genealogical inquiry along the lines above shows that treaty interpretation is not governed by immutable rules; it is a “language game” played by historically situated actors the historical situation of which directly impacts what the game is and how it should be played.

http://opiniojuris.org/2015/04/09/book-symposium-textualism-in-treaty-interpretation-a-genealogy/